Ms. Neha Bhasin vs Sanjeev Kumar @ Monu
2007 Latest Caselaw 142 Del

JUDGMENT

S. Ravindra Bhat, J.

1. This present appeal under Section 28 of the Hindu Marriage Act (hereafter ``the Act'`) is directed against an order dated 22.11.2004 of the Additional District Judge (hereafter ``the trial court'`) in H.M. Petition No. 793/2003. The trial court dismissed the appellant's petition under Section 12 of the Act, seeking declaration that her marriage with the respondent husband (hereafter ``the husband'`) was void. The respondent was set down ex parte in the trial court; he has not appeared despite service in these proceedings, too, and was set down ex-parte.

2. The Appellant had alleged, that on 18.02.03 she was kidnapped by the Respondent in collusion with his family members and taken to an unknown place where she was confined in a room, and not given proper food. She was not allowed to communicate with anybody. She alleged that she was rendered unconscious after being made to consume intoxicated food and fruit juice. She also alleged that she was threatened and her signature was obtained on various papers showing that the marriage was solemnized between her and the respondent on 20.02.2003, at Arya Samaj plot Kamalpur, Delhi-9. The marriage was also registered with the Registrar of Marriages at Ghaziabad, U.P on 21.02.2003.

3. The wife alleged in her pleadings that she was under influence of drugs, and did not understand anything and the marriage between the parties was illegal, as force and fraud was used, and no valid consent was given by her to the marriage. On 20.2.2003 the police officials after an FIR No. 99/03, alleging offences under Section 366 IPC, was lodged, recovered the appellant from the custody of the Respondent; she was produced before the Metropolitan Magistrate on 26.2.2003. The court recorded, after considering her statement, that she was under dilemma and not in a position to give any statement. The appellant on 28.02.03 without any coercion deposed before the Link Magistrate that she was under the influence of drugs and had lost her ability to decide. The appellant's custody was handed over to her father.

4. The Appellant had further alleged that on 05.03.2003 she was once again kidnapped by the respondent, in the absence of her parents. Her father filed a writ petition in the nature of Habeas corpus before this Court, after which she was produced and her statement under Section 164 Cr.P.C was recorded, where she stated that she was taken to Arya Samaj mandir and threatened that in case the marriage was not solemnized her father would be killed. The marriage was performed in the presence of the Respondent's parents and ``Mausi'` (ie. maternal aunt). The appellant alleged that after the marriage she was taken to different places. She alleged that she was influenced by Tantrik vidhya of the Respondent's mother and she was once taken to a Dargah at Nizamuddin where she was given, asked to wear 2 tabizs at their instance. She also alleged that she was made to sign the papers; and pictures of the alleged marriage were taken when she was under the influence of drugs. According to her the Respondent is an illiterate person, and a drug addict, a history sheeter and was involved in a number of criminal cases. The Respondent was also convicted and sentenced to three years imprisonment for burning his wife. It was also alleged that several other criminal cases were pending against him.

5. The police recorded the appellant's statement in a lawyer's chamber in the presence of the Respondent's mother and uncle and the statement was neither read to her nor was she asked to read it. She was just made to put her signature on blank papers. The Appellant states that while deciding the writ petition the court held

that the appellant may be examined by a board of doctors and after receiving the opinion of doctors her statement may again be recorded by the metropolitan magistrate.

It was also directed that the Medical Superintendent, G.B.Pant Hospital to constitute a board of three doctors to examine Neha expeditiously as possible and ensure that a report is made available to the concerned SHO before 21.04.03. All parties and their respective counsel suggested that during the interregnum period Neha should stay in the Gita Ashram Temple, FU Block, Pitam Pura, Delhi, where she had already, stayed on earlier occasions. We order accordingly. We direct the state to place a lady constable round the clock for her security during that period and she would not be disturbed by any of the parties.

6. The Appellant stated that she was examined by doctors and her physical and mental state was found to be all right. The Psychometric Assessment test was not conducted, as the hospital did not have the provision, she was further referred to Institute of Human behavior and Allied Sciences .The Appellant alleges that she was not subjected to any Psychometric Assessment Test and on 21.04.2003 her statement was recorded by the Metropolitan Magistrate, she was sent back to the Respondent where she was treated with cruelty by him and his parents. The Appellant further alleges that she was forced to give statement in some case under 376 IPC and on the basis of her statement that criminal case was quashed.

7. The Appellant alleges that on 4.10.2003 she was turned out of the Respondent's house. She had, in the meanwhile, filed a petition for nullity in the trial court. The Respondent was proceeded ex parte as he failed to appear despite service. The Petition was dismissed by the impugned judgment dated 22.11.2004

8. The trial court in the impugned order has held that:

Arguments were heard ex parte on behalf of the petitioner. Earlier also, petitioner has filed a petition under Section 12 of Hindu Marriage Act for declaring her marriage with the respondent a nullity vide HMA No. 231/03. In the present petition, the petitioner has stated that earlier petition was withdrawn on 29.8.2003 whereas in fact the petition was dismissed. Earlier, petition was filed on 26.3.2003. As per the case of the petitioner she was again kidnapped by the respondent on 5.3.2003 as it was in the evening of 4.10.2003 that she was sturned out from the matrimonial home in three wearing clothes. She had the ample time to make a complaint particularly when she had come to the court and had made statement in favoring the respondent in a criminal case under Section 376 IPC against the respondent. Since earlier petition was filed on the basis of some facts which was not prosecuted by the petitioner and it is not permissible for the petitioner to continue agitating the same facts again and again as per her own convenience. In the earlier petition, the petitioner has stated that after being kidnapped for the second time on 5.3.2003, she was living with her parents since 20.2.2003. There was opposite facts stated in the second petition of the petitioner living with her parents since 4.10.2003. As per the facts now being stated that the petitioner and respondent had lived together from 5.3.2003 to 4.10.2003 when she was allegedly thrown out from the matrimonial home by the respondent. What is the grievance of the petitioner is not clear whether the marriage having been solemnised without her consent, the consent having been taken with force and fraud or the fact of her having been thrown out from the matrimonial home. The petitioner had also co-operated with the respondent in quashing of criminal proceedings under Section 376 IPC which was on the basis of statement made by her and as such, it is difficult to conclude that the consent of the petitioner to the said marriage on 20.2.2003 which was registered with Registrar of Marriages at Ghaziabad, U.P. on 21.02.2003 was obtained with force and fraud. In the circumstances, I hold that petitioner has not been able to prove the ground of her consent having been obtained with force or fraud and as such no ground for declaring the marriage as nullity is made out. The petition under Section 12 of Hindu Marriage Act filed by the petitioner is accordingly dismissed. Decree sheet be prepared accordingly. File be consigned to the record room.

9. It was urged and contended on behalf of the appellant-petitioner that the reasoning of the trial Court cannot be upheld. It was submitted that the earlier petition for annulment was not disposed of on merits but dismissed in default. It was contended that there was no misstatement involved in averring that the previous petition was withdrawn instead of stating that it was dismissed for non-prosecution.

10. Counsel contended that the approach of the Court in holding that since the petitioner did not file a police complaint, she was disentitled for the relief of annulment is unsustainable. The order dated 10.4.2003 in Crl. WP No. 342/2002 had noticed her statement recorded on 28.2.2003. It was submitted that this Court recorded statement that her signatures were obtained, in the chambers of a lawyer and was neither read over nor explained to her. She also contended that the Court had noticed that the respondent had been convicted under Sections 302/34; that in addition he had been convicted for other offences. It was submitted that in spite of the Court's directions the test as required to be done was not carried out.

11. Learned Counsel contended that the trial Court unduly relied upon the circumstance of the quashing of proceedings under 376 IPC, which in any case were without the petitioner's volition or on a statement recorded on her free will. Having regard to the state of the record, before the trial Court, which disclosed that the respondent was a bad character and had been even convicted for heinous and grave offences, the trial Court ought not to have dismissed the petition. If there was any doubt, it was open to the Court, in addition to examining the affidavit evidence, to record the appellant's statement under Order X CPC. Even, otherwise, the history of the case revealed that the marriage between the parties was not solemnized with the free will and consent of the appellant, who was under coercion and completely unaware about the respondents true nature and background. In these circumstances, she was entitled to a decree of nullity.

12. Learned Counsel next urged that the trial Court committed an error in assuming that there was a contradiction between the contents of the first petition and the second petition. It was submitted that the averments in the petition itself clarified that the petitioner had returned to her parents on 26.2.2003; she was kidnapped on 5.2.2003, forcibly taken some where and made to record statements leading to quashing of prosecution under Section 376 and eventually turned out of the house on 4.10.2003. It was submitted that the trial Court also fell into error in assuming that the petitioner was not clear in the nature of reliefs sought and that she had willingly consented to quashing of prosecution, in respect of offence under Section 396 IPC. It was urged that the Court ought to have seen the totality of the circumstances on the basis of the pleadings, documentary evidence and the affidavit placed before it.

13. Being proceedings of a civil nature, it was not expected of the petitioner to prove the case beyond reasonable doubt. Learned Counsel relied upon the judgment of the Supreme Court in Dastane v. Dastane and stated that the existence or otherwise of facts ought to be seen from the stand point of reasonableness having regard to the materials. It was urged the Court held that proceedings under the Act do not require the higher standard of proving a case beyond reasonable doubt.

14. Counsel also relied upon the judgment in S.C. Shanti v. P. Venketesh for the proposition that consent was never given by the petitioner for the marriage, which was solemnised by coercion and threats. It was also submitted that the trial Court lost sight of the fact that the appellant-petitioner was under influence of drugs and under the spell of Tantrics, who had induced peculiar mental conditions akin to hypnosis and as a result she was not a free agent. Hence the ingredients of Section 12 were clearly attracted.

15. The trial Court in this case has proceeded to reject the petition for nullity on two main grounds namely, that the petitioner had approached the Court on an earlier occasion, that proceeding had been dismissed. The second ground was that the petitioner had not objected to and was a willing party to quashing of criminal proceedings on allegations of respondent having committed rape on her. It is apparent from the reasoning of the trial Court that the various criminal proceedings to which the respondent was a party and which had been detailed in the materials produced before it and which are also part of the record, were not adverted to or considered by it. Paras 6 to 12, detail the various circumstances that surrounded the marriage, betweens the parties. This position has been reiterated in the affidavit of the petitioner filed in the Court. The trial Court records also reveal that the FIRs dated 18.2.2003 and 4.3.2003 were part of the record. Circumstances under which the petitioner's custody was obtained by police was also disclosed. Para 8 ( of her affidavit evidence) clearly states that the respondent/ husband was convicted on various offences and Paras 10 and 11 of the affidavit states as follows:

That due to fear of criminal case under Section 376 IPC the petitioner/deponent was taken forcibly by the respondent to his house and under undue threat, coercion the petitioner deponent was forced to make statement before the concerned court of law and thereafter the respondent was discharged from the said offences.

That now the respondent, after release from the said case under Section 376 IPC, has kicked out the petitioner from his house on the night of 4.10.2003 in bare three wearing clothes and since then till date the petitioner is living in the house of her parents.

16. The copies of the various FIRs, lodged against the respondents as also the statements recorded on 28.2.2003; the order of this Court in Crl.W. No. 342/2003 dated 10.4.2003 and the certificate of the Medical Superintendent, G.B. Pant Hospital, have been produced in these proceedings. Despite the Court's directions psychometric test of the petitioner could not be conducted.

17. The pleadings and the materials on record show that the respondent chose to keep himself away from the proceedings before the trial Court. Even in this Court, notice could not be served and the petitioner had to seek recourse to the publication of the Summons. Eventually, on 28.10.2005, the respondent was set down ex parte after publication of the Summons in the newspaper.

18. It is no doubt the duty of the litigant who approaches the Court to prove his case in order to secure the relief claimed regardless of the defense taken or likely to be raised by the opponent. In this case, the respondent was absent before the trial Court. Under the circumstances, the Court was expected to see the totality of the circumstances while examining the claim that the marriage between the parties was a nullity on account of consent having been obtained by fraud.

19. The Supreme Court in Dastane's case has ruled that matrimonial proceedings under the Hindu Marriage Act, civil in nature, do not hinge upon the litigant approaching the Court, being required to prove his or her case beyond reasonable doubt. That standard of proof is required in criminal proceedings. However, the Court has to see the pre-ponderance of probabilities and wherever direct evidence is not forthcoming, examine the circumstances on the basis of the materials, having regard to their probabilities. Here the petitioner clearly alleged the circumstances under which she was married with the respondent; the recovery of her custody, her statements recorded by the Metropolitan Magistrate and even this Court are undeniable facts. In view of these circumstances, the extremely narrow view taken by the trial Court, (i.e having regard to the quashing of criminal proceedings to which the petitioner is claimed to have consented to and the previous petition having been dismissed), in my opinion cannot be sustained. There were sufficient materials by way of both document as well as the oral testimony to the petitioner, which supported her claim in the pleadings that the respondent had kidnapped her, exerted undue influence, used drugs and also sought to induce artificial mental states to keep the appellant under his control. The petitioner had clearly deposed that the respondent was convicted and at least involved in several other criminal cases. In these circumstances, the narrow and restricted view taken by the trial Court, in my view cannot be sustained. The petitioner in my considered view discharged the onus of having to prove that the marriage between the parties was not performed with her free consent and also that she was unaware as to the true circumstances surrounding the marriage as well as the respondent. In that sense the ingredients of Section 12, stood satisfied on the basis of the existing materials on record.

20. In view of the above discussion, the appeal has to succeed. The judgment and order of the trial Court of the learned Additional District Judge in HMA No. 793/2003 is hereby set aside; the petition claiming nullity of marriage between the parties, as prayed for is hereby allowed. Let a decree be drawn up accordingly.

21. The appeal is allowed in the above terms. No costs.